Tuesday, June 27, 2006

Presidential Signing Statements

At 10 EST, the Senate Judiciary Committee will hold a hearing on "The Use of Presidential Signing Statements." Witnesses are Michelle Boardman, Office of Legal Counsel, Charles Ogletree, Harvard Law School, Christopher Yoo, Vanderbilt Law School, Bruce Fein Esq., and Nicholas Rosenkranz, Georgetown Law Center. An article in yesterday's New York Times discussed Congress's anger and frustration over the Bush Administration's serial use of Presidential signing statements to stake out a position that contravenes the plain words of the statute and contravenes deals painstakingly worked out between Congress and the Executive Branch. Here is a link to a Findlaw article by John Dean that contains other references. Those interested in Justice Alito's views should read this January 2006 article from the Washington Post.

In light of the loud position of some that meaning is to be found only in the text of a statute, it will be interesting to hear their views on the weight if any to be given to the President's efforts to create a form of legislative history for the work product of another branch of government.

This is not to say that the Bush Administration is the first to use signing statements: my first real experience with them was, I believe, in 1998 when, in response to grumblings that Congress had impermissibly delegated to the Copyright Office the function of determining exemptions from the DMCA's anticircumvention provisions, President Clinton stunned the copyright world and many others by claiming in a signing statement that the Copyright Office was in the Executive Branch. It isn't and saying it is doesn't make it so. (Here is a link to a 1993 memorandum prepared by Bernie Nussbaum for President Clinton on the legal significance of signing statements).

6 comments:

I'm definitely no lawyer, but I don't like looking into Congress's intent because I don't think it's likely that there is a single intent when up to 535 people vote on a bill.

And, while its easier to believe the President when he says "the reason I'm signing this bill into law is ..." I don't think it should have any legal weight at all. It reminds me of James Madison telling the Supreme Court to declare anything he did Constitutional because, as the secretary of the Constitutional Convention, he knew what the Convention really meant.

Max:I am a definite congressional partisan on this and agree with your comments on the Executive Branch. Your comments about Congress have been endorsed by a number of scholars who are fond of saying Congress is a "they" not an "it." The reality of much legislation is, though, that very few members are involved. And that is by design: like any large organization, Congress delegates specialized tasks, in this case to committees. Why not look to the views of the specialized group set up for precisely that purpose?

/* The reality of much legislation is, though, that very few members are involved.*/

You are obviously more-qualified to comment on that aspect of things than I am. And, in fact, that's one of the reasons I'm a regular reader.

/* Why not look to the views of the specialized group set up for precisely that purpose?*/

I know both houses of Congress give themselves several opportunities to amend bills, both before and after the bill leaves the relevant committee(s).

On the one hand, if I petition my state or city government to bring attention to an issue, and a law eventually gets passed, my original intent doesn't legally matter, even if I were an RIAA lobbyist instead of an average Joe. Partly because my involvement would be at the beginning of a long process with many twists and turns.

OTOH, not every bill will have many twists and turns. To pick a silly example, Congress's decision to relabel french fries in the cafeteria didn't have much debate, and had pretty clear intent.

I'm not always opposed to courts using legislative history. But I don't like it, and I believe many times it's used as "academic piling on" (to quote a recent Scalia dissent). I don't believe the practice should be prohibited, but I do think it should be curtailed.

It almost makes me wish courts could remand murky cases to the relevant legislative body (or, more likely, to issue a stay until the legislative body clears things up). But only almost.

Technically, I am pretty sure the that the Library of Congress is now part of the executive branch. Otherwise, under 5 usc 136, how could the Librarian of Congress be nominated by the President and confirmed by the Senate if he was a legislative official like, say, the Parlimentarian, part of the CBO, or the Chaplain?

The rulemaking function of the Librarian of Congress under 17 USC 1201 et seq. confirms this, although even as a federal executive agency, one has to question whether federal agency rulemaking as to first amendment issues (determining what acts of circumvention should be excepted from the DMCA) is within its permissible jurisdiction. (It definitely is outside its jurisdiction if its a legislative agency.) For example, it seems to be contrary to the PTO TTAB's administrative decision in Pro-Football v. Harjo, where the TTAB explained that as an executive administrative adjudicative body, it did not have the (constitutional and/or statutory) authority to render an opinion on a direct 1st amendment challenge to the PTO trademark rules blocking "disparaging" marks.

On the main point of your post, though, I agree wholeheartedly. With respect to the McCain Anti-Torture amendment, the President's suggestion in his signing statement that his inherent power as commander in chief circumscribes any attempt by Congress to regulate the conduct of the Executive Branch (and the military) during wartime is directly contrary to the language of the constitution: Article I, section 8, clause 11 expressly gives Congress the power to "To declare War . . . and make Rules concerning Captures on Land and Water."

The Executive Branch is trying to obtain the type of "plenary" Federal power that none of the three branches actually have, through a strange interpretation of the beginning of Article II's "executive power" and the role as "commander in chief." To see how frail this reasoning is, look at Congress: Congress has the entire federal "legislative power," but despite a lot of Congressional overreaching in finding ennumerated bases for legislation, it still can't legislate in, say, an area outside of its ennumerated powers - take Employment Div. v. Smith, Lopez, etc. There is no justification for the President's position... its just a question of whether this type of overreaching will be permitted by congress, political forces and the courts.

/* It almost makes me wish courts could remand murky cases to the relevant legislative body (or, more likely, to issue a stay until the legislative body clears things up). But only almost.*/

That was meant as a joke. Thinking things over, this proposal would create far more issues (ex post facto issues especially) than it would solve. And, when courts rule a law unconstitutional, they are basically telling the relevant legislative body to do it over.

The Library of Congress is called "of Congress" for the simple reason that it is a supporting agency of Congress. Here is a link that shows it. http://www.lib.umich.edu/govdocs/fedlegis.html. Appointment by the President and advice and consent by the Senate doesn't have anything to do with placement; for example, the Copyright Royalty Board was an independent agency in the legislative branch and its members were appointed by the President.

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This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.